Theories of Regulation: Incorporating the Administrative Process

Abstract

Several important theories of regulation, perhaps especially those developed by economists and political scientists, fail to incorporate any well developed vision of the administrative process -- that is, of administrative law and practice. Instead, scholars writing on the political economy of regulation routinely generalize on a plane of abstraction far above the administrative process, typically taking regulatory outcomes to be explicable by reference to legislative behavior. Yet of course particularized regulatory decisions are almost always made by agencies, not legislators, in view of which fact any serious theory of regulation at least implies some theory of administration. This article takes one step toward bridging a gap between theoretical work on regulation, on the one hand, and legal-doctrinal work on the administrative process, on the other. It first shows that no existing theory of regulation provides either a satisfying explanation of regulatory decisionmaking or a reliable means of predicting regulatory outcomes; treating the administrative state as a black box yields little. It furthermore paves the way for future refinement of existing theories by generating a set of administrative-process expectations for each theory under consideration, and then 'testing' the theories against what is currently known about legal-process rules and participation in agency-level regulatory decisionmaking.